Mason loses court case to get city records. Other appeals still pending by activist-turned-councilwoman

Mason loses court case to get city records Other appeals still pending by activist-turned-councilwoman

02/10/2008 Hoboken Reporter

TAKE IT TO THE JUDGE – Hoboken’s Corporation Counsel Steven Kleinman (bottom-right) was pleased with the court’s recent decision to knock down 2nd Ward Councilwoman Beth Mason’s appeal of a case against the city to get information on the city’s park plan.

Before Beth Mason became the city's 2nd Ward councilwoman last summer, she had filed a number of lawsuits to force the town to give her various records.

But last week, she suffered a legal setback when she learned that a year and a half after losing one of her suits against the city in the Hudson County Superior Court, three judges from the court's appellate division reaffirmed the previous decision, knocking down her appeal.

This past Jan. 29, Judges Donald Coburn, Jose Fuentes, and Amy Piro Chambers ruled that requests for public documents that Mason made in 2005 were too broad.

The judges stated in a joint decision that, "Each and every request that was made in this case rivaled an open-ended search of the entire Hoboken government's files with respect to a specific subject, and clearly was not ... with any specific clarity, tailored or designed to get a request or make a request for a specific document or documents."

That case was one of several Mason has filed in recent years against the city, claiming the city violated the state's Open Public Records Act (OPRA).

The recent case involves four OPRA requests submitted to City Clerk James Farina on Nov. 22, 2005, in which Mason asked for various documents that mostly pertained to the mayor's park plan.

Mayor David Roberts has complained in the past that Mason is wasting taxpayer money on her various suits, while Mason has said that the city should simply give her the records so she won't have to resort to going to court.

Last week, Mason said, "What this [ruling] is saying is that if you, as a citizen, want information on something like the mayor's park plan, and don't know the exact document, its name/date, then too bad, you can't have it."

Mason is among those on the nine-member Hoboken City Council who are rumored to be considering a mayoral run in 2009.

What the law states

According to state law, all OPRA requests must be answered within a period of seven days by the clerk's office.

One of Mason's four requests in November of 2005 was answered within a week's time. However, she did not get a response to the other three until January of 2006, more than a month later.

Shortly before receiving responses from the city, which Mason said were not complete anyway, the councilwoman filed a lawsuit against the city.

In that suit, she claimed that Hoboken's conduct amounted to improper denial of requests under OPRA and further stated that the responses were "inadequate and incomplete."

The trial judge rejected both of Mason's arguments. Regarding the first issue, Hudson County Judge Carmen Messano noted that Mason's request was broad enough to warrant more than seven days' response. He said that Mason received the information within a reasonable amount of time, considering the nature of the request.

With regards to the argument about the records being incomplete, the judge found that Mason's requests "did not identify, with specificity, the records at issue."

Mason appealed the court's decision in September of 2006, sending the matter to the state's appellate division.

In the most recent decision, the three judges further stated, "OPRA is not intended to be used as a fishing expedition or as a research tool to compile unknown documents. Because the plaintiff did not specify the documents she was seeking ... her request did not comply with the requirements of an OPRA request. As such, Hoboken was under no statutory obligation to provide responses."

Mason has not yet decided whether she will appeal the decision. If she does, it will go to the state Supreme Court.

Both sides respond

As expected, both the city and Mason reacted very differently to the court's ruling.

Mason asked how residents are expected to know when certain documents were filed and what each document's title is, saying, "That's something a city employee would know, not the public."

In stark contrast, the city's Corporation Counsel Steven Kleinman said, "Councilwoman Mason sends the city on these fishing expeditions, and we try to accommodate her the best we can, but it puts us in an impossible situation where we're left to guess what she wants, and then when she's not satisfied with the amount of time it takes to get her the information, she files a lawsuit."

Kleinman added, "The idea that we're not giving her records for the sake of not giving her records is the furthest from the truth."

Mason's attorney, Jeffery Kantowitz, said, "The requests identified specific, well-known projects. Three of the requests, Hoboken never advised or claimed - while responding to them - that they were vague or overbroad, or that Hoboken did not know how to respond to them."

In response to Kleinman's comments, Mason replied, "Why is it such a big deal to give information to me? Citizens should not have to fight for articles that should be accessible. If it was too broad to begin with, they should have told me that, and I would have made it more specific, rather than making up excuses after the fact."

She added that the documents she did receive were "definitely not complete."

When asked why the city didn't just tell Mason that her initial request was too broad, Kleinman, who pointed out that he was not the city's corporation counsel at the time, said that it is his personal policy to work with residents and make them aware of what they have to do in order to ensure they receive the information they require.

Kleinman's predecessor was former city attorney Joe Sherman. Kleinman refused to comment on why Sherman would not have advised Mason.

What information did she want?

According to Mason, the reasons for the OPRA requests were to determine who was hired to publicize the mayor's park initiative in 2005 and how the publicity was paid for. The mayor's pledge for more parks was a cornerstone of his re-election campaign.

Mason expressed her curiosity as to why the plan was released around the same time as his mayoral campaign.

When asked why she wasn't more specific with her request, Mason said, "In most businesses, when you work on a specific plan or project, you keep a file or a couple of files on that plan. I would think by requesting information on the mayor's park plan, that would have been specific enough."

In response to the implications that accompany Mason's concerns, Roberts said, "Hoboken mayors have sent out material based on what the government is doing since the '70s. Doesn't the public have a right to know what we are doing?"

Roberts continued, "Mrs. Mason is consistently suing and losing to the city. This is a misguided effort by Mrs. Mason to gain publicity at the expense of Hoboken residents. What she should do is return to the taxpayers the hundreds of thousands of dollars in both legal fees and man hours that she has wasted in her publicity stunt."

Seven lawsuits

According to Kleinman, Mason has filed a total of seven lawsuits against the city, of which she prevailed in two.

All of them were primarily focused on matters involving transparency and open government.

Of the five suits that Mason lost at the trial level, she has appealed four, one of which is the appeal that is the subject of this article.

The appeals of the remaining three suits are still pending, according to Kleinman.

Mason's two victories involved lessening the copying fees of getting documentation from the city, and a request for the city to provide her with certain purchase orders from the business administrator.

According to Kleinman, the city has spent in excess of $200,000 in legal fees to outside firms defending against Mason's suits.

The costs associated with this appeal alone cost the city approximately $13,000, added Kleinman. The case was handled by the law offices of Florio & Kenny in Hoboken.

In addition, Mason has filed suits against the Hoboken Board of Education and Hoboken's Municipal Hospital Authority. In fact, before becoming corporation counsel for the city in April of last year, Kleinman himself represented the Hoboken school board against Mason; at the time, he was practicing out of the law offices of Scarinci and Hollenbeck in Lyndhurst.

What's the answer?

According to city spokesman Paul Drexel, the entire park plan project was created in-house by the city's former employee, Joseph Corrado, and the distribution and advertising costs associated with promoting the project, which included ad space in newspapers and a citywide mailing, amounted to approximately $11,920.

They were paid for by the city through the Community Development department, headed by Director Fred Bado.

To date, however, Mason says the city is still not being cooperative with regards to releasing information.

Cell phone records

Currently, Mason is still waiting for records on charges for both EZ Passes and cell phones that are owned by the city and loaned out to its employees, to investigate if there have been abuses and see if and where cuts can be made.

When asked what's taking so long, Kleinman said that the EZ Pass records Mason requested were not readily available, and the city is currently in the process of acquiring them directly from EZ Pass.

With regards to the cell phone charges, Kleinman said that one of the pending lawsuits Mason has against the city involves cell phones, and he would have to look further into the matter before determining whether they can be released to her.

Mason, on the other hand, said that as a councilwoman, she is permitted to view such records.